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TATUM v. MORTON

December 14, 1974

LYLE TATUM, FLORENCE TATUM, MARY BYE, GEORGE WILLOUGHBY, AUGUSTA BEADENKOPF, MARSHALL SUTTON, MILDRED RINGWALT, JANET JONES, ELIZABETH MILLARD, ROWLAND K. LEONARD, MARY JANE LEONARD, ALFRED E. SIDWELL, MORRIS LANGMAN, JAMES ESTES, BERTHA FAUST, DONNELL BOARDMAN, ELIZABETH BOARDMAN, JOHN TWEDDLE, H. STEPHEN WALKER, an infant, through his mother, Mrs. Ann Louise Walker, MAYME NODA, KEITH MILLER, KATHY MILLER, COLIN W. BELL, JONATHAN MIRSKY, GERTRUDE CROASDALE, JOHN LAMPERTI, CLAUDIA LAMPERTI, MARY NORRIS, F. MILES DAY
v.
ROGERS, C. B. MORTON, individually and in his official capacity as Secretary, Department of the Interior; PETER RAYNOR, individually and in his official capacity as an agent of the United States Department of the Interior; WILLIAM FAILOR, individually and in his official capacity as Superintendent, National Capital Parks Service; TED SMITH, individually and as an employee or agent of the United States Department of the Interior Office of the Superintendent; JERRY V. WILSON, individually and as Chief of Police, Metropolitan Police Department; INSPECTOR JOHN DOE #1, individually and as a member or agent of the Metropolitan Police Department; JOHN DOE #2, and other unknown persons, individually and as members or agents of the Metropolitan Police Department; JOHN DOE #3, and other unknown persons, individually and as agents of various executive departments of the United States Government; THE DISTRICT OF COLUMBIA; J. EDGAR HOOVER, in his official capacity as Director, Federal Bureau of Investigation.



The opinion of the court was delivered by: GASCH

 This matter is before the Court on plaintiffs' motions for determination of appropriate damages, expungement of arrest records, and award of attorneys' fees. *fn1"

 I. FACTS.

 On Sunday, April 25, 1971, plaintiffs were participating in a peaceful Quaker vigil of prayer on the White House sidewalk, seeking to bring about a change in this country's Vietnam war policy. When persons thought to be "outsiders" joined the vigil, police lines were established, and the vigil participants were ordered to disperse. When the plaintiffs refused, they were arrested, photographed with the arresting officers, placed on busses and transported to places of detention. There they were "booked," including fingerprinting and photographing, and confined in cells.

 About three to four hours after the arrests took place, all plaintiffs except one were offered the opportunity to post ten dollars collateral and be released. Seventeen of the twenty-eight adult plaintiffs refused to post collateral,

 
because, as some of them testified in substance on deposition, (1) they believed that their arrests were unjustified and that posting collateral would somehow give an air of legitimacy to the arrests; and (2) they held the conviction as a matter of conscience that they could not participate in the bail system which discriminated against persons without sufficient money to "buy" their release. *fn2"

 These plaintiffs complain of a variety of indignities before being released the next morning.

 On March 13, 1974, this Court held the arrests were unlawful and that Inspector William Trussell of the Metropolitan Police Department who ordered the arrests was individually liable and that the District of Columbia was liable for the actions of Inspector Trussell. *fn3"

 The first issue before the Court is the determination of appropriate damages. The parties have filed pleadings for the Court's consideration, and a hearing has been held in which eight plaintiffs testified.

 Plaintiffs are seeking $775,389.40 compensatory damages. They are also seeking $2,700.00 punitive damages against Inspector Trussell ($100.00 per plaintiff) and $27,000.00 punitive damages against the District of Columbia ($1,000.00 per plaintiff). Plaintiffs itemize this as $10,000.00 per plaintiff for the disruption of the vigil demonstration, $10,000.00 per plaintiff for the arrest without cause, attendant indignities and brief incarceration; $10,000.00 for each of the seventeen plaintiffs who refused to post collateral and incurred longer confinement and additional indignities; and lesser amounts for plaintiffs who suffered particular injuries.

 1. Injuries.

 The first question is what injuries should be the subject of compensation. In order to determine the answer, the Court must decide whether the plaintiffs may recover damages for those injuries which followed upon their refusal to post collateral.

 "Ordinarily a person seeking to recover damages for the wrongful act of another must do that which a reasonable man would do under the circumstances to limit the amount of the damages." Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 489, 60 L. Ed. 1117, 36 S. Ct. 630 (1915). A corollary of this general rule is that a party cannot recover damages flowing from consequences which that party could reasonably have avoided. Alcoa Steamship Co. v. Charles Ferran & Co., 251 F. Supp. 823, 832 (E.D. La. 1966). The obvious reason for this is that "the community's notions of fair compensation to an injured plaintiff do not include wounds which in a practical sense are self-inflicted." Ellerman Lines, Ltd. v. The President Harding, 288 F.2d 288, 290 (2nd Cir. 1961). This is especially true if the injured party can protect himself against additional adverse consequences at a "trifling" expense. Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F.2d 504, 511 (9th Cir. 1957); Danzas, Ltd. v. National Bank of Alaska, 222 F. Supp. 671, 677 (D. Alaska, 1963); Bancroft v. Indemnity Insurance Co. of North America, 203 F. Supp. 49, 54 (W.D. La. 1962). The word "trifling" means a sum which is trifling in comparison with the consequential damages which the party is seeking to recover in a particular case. 22 AM. JR. 2d Damages § 32 (1965), citing Bear Cat Min. Co. v. Grasselli Chemical Co., 247 F. 286, 288 (8th Cir. 1917).

 Here the cost of posting collateral was $10.00 per plaintiff, which amount would have been returned upon the dismissal of the charge; the amount of subsequent damages is alleged to be $10,000.00 per plaintiff. Nothing more need be said. Ten dollars in this context is a trifling sum of money. This is particularly true since the law in adjudicating such cases makes no distinction between those posting and those not posting collateral.

 Plaintiffs argue that since one need not sacrifice or compromise a substantial contract or property right in order to mitigate damages, *fn4" then, a fortiori, he should not be required to sacrifice or compromise a religious or conscientious conviction, either.

 Those narrow exceptions to the general rule are irrelevant to this case. Posting collateral would not have compelled plaintiffs to compromise or sacrifice any rights. It would have enabled them thereupon to get out of jail without making any admission of guilt. They still would have had the opportunity for their day in court and ultimate success. This was explained to most, if not all, of the plaintiffs by a legal aid lawyer and the police. Instead they preferred to protest the bail system by refusing to post collateral.

 Furthermore, federal courts have held that even in constitutional tort cases under 42 U.S.C. § 1983 plaintiffs have a duty to mitigate damages. *fn5" Particularly pertinent to this case is Doherty v. Wilson, 356 F. Supp. 35 (M.D. Ga. 1973), in which the plaintiff, found to be a qualified teacher by the Sumter County, Georgia, Board of Education, was nevertheless denied employment because she lived at Koinonia Farms, an interracial, religiously oriented communal farm in Georgia. The Court held that the Board's action violated her first amendment right of free association and ordered that she be offered the first available teaching position for which she was qualified. But it refused to award her back pay because she had not taken reasonable steps to mitigate damages.

 
Mrs. Doherty made only one other application for employment after receiving notice that the Sumter County School Board would not hire her. She made no other applications for employment as a teacher for the 1972-73 school year with nearby Lee County or any other county. This lack of effort to find other employment, plus the defiant attitude taken by plaintiff . . . when [she] appeared before the board, plus the disapproval of personal wealth reflected in plaintiff's life-style, indicate that plaintiff's primary interest was to vindicate an infringement of her rights rather than to earn money.

 Id. at 41.

 The similarity between that plaintiff and these plaintiffs is apparent. Both refused to take reasonable steps to mitigate damages. Both were primarily interested in vindicating an infringement of their rights. In addition, the Quaker plaintiffs were protesting the bail system, even though that issue was extraneous to the cause of the arrest. To borrow from the Court in Doherty, it was clearly their right to do this, but by doing so they failed to take reasonable steps which could have avoided at least in part subsequent injuries. Their failure to take reasonable steps to avoid the consequences of the prolongation of detention makes it inappropriate for this Court to award damages for injuries alleged to have been received by or during the prolongation of detention. Id.6

 Injuries common to all plaintiffs for which damages may be awarded are the disruption of the vigil in violation of the first amendment, the illegal arrest and brief incarceration in violation of the fourth and fifth amendments, attendant publicity, and mental distress.

 2. Amount.

 The second question is the amount of damages to be awarded. While it is relatively easy to list injuries for which the law provides nominal or compensatory damages, it is much more difficult to determine the appropriate amount, especially where, as here, the injuries are of an intangible nature. There are certain principles to which the Court may look for guidance, but in the end the particular facts and circumstances of each case are determinative.

 Nominal damages are presumed to follow from the violation of any valuable legal right, even if no actual damages are involved. Basista v. Weir, 340 F.2d 74, 87 (3rd Cir. 1965); Magnett v. Pelletier, 360 F. Supp. 902, 907 (D. Mass. 1973). "The term nominal damages means a trivial sum usually one cent or one dollar -- awarded to a plaintiff whose legal right has been technically violated but who has proved no real damage." Chesapeake & Potomac Tel. Co. v. Clay, 90 U.S.App.D.C. 206, 194 F.2d 888, 890 (1952).

 In addition, compensatory damages may be recovered for injuries resulting from defendants' violation of plaintiffs' constitutional rights. For some of these injuries, such as the loss of a day's pay by one of the plaintiffs, the amount of damages can be measured with certainty. For other injuries of a less tangible nature, such as publicity, humiliation, and outrage, the amount of damages cannot be ascertained with specificity. Such uncertainty as to the amount of damages will not bar recovery, but the amount of recovery will be fixed in the sound discretion of the trier of fact, in this case, the Court. Story Parchment Co. v. Paterson Co., 282 U.S. 555, 563-566, 75 L. Ed. 544, 51 S. Ct. 248 (1930). In fixing the amount of recovery, the trier of fact may make reasonable inferences from the facts and circumstances in evidence. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264, 90 L. Ed. 652, 66 S. Ct. 574 (1945).

 In seeking damages of over $775,000.00, plaintiffs have stressed the importance of their constitutional rights to them, the outrage they felt at having those rights violated, their humiliation in being arrested and briefly incarcerated, and the adverse effect of the publicity attendant to their arrest. The Court does not believe the facts of this case warrant such a massive recovery. Indeed, in fixing damages there are two facts which the Court finds to be controlling in this case. Both of these facts indicate the appropriateness of a limited recovery.

 The first of these is that plaintiffs were participating in a demonstration. Their purpose in conducting their prayer vigil publicly in front of the White House rather than privately in a meeting house was to receive publicity. Plaintiffs contend they congregated in response to a newspaper story in which President Nixon had attributed his Vietnam war policy to his Quaker background. These plaintiffs wanted "to hold him in the light" not only to influence him to change his war policy but also to publicly proclaim the Quaker heritage of pacifism. Therefore the publicity incident to their arrest was one of the objectives sought by them. This Court is unable to find that plaintiffs were greatly aggrieved because the light of publicity which they were seeking to have shine on their demonstration shone more brightly than they had anticipated. Louisiana Sulphur Car. v. Gulf Resources & Chem. Corp., 53 F.R.D. 458, 461 (D. Del. 1971).

 The second fact which the Court finds controlling in this case is that most of the plaintiffs chose not to post collateral and be released from custody when they were given the opportunity to do so. Instead they chose to remain in jail to protest their arrest and the bail system. Despite plaintiffs' protestations of great mental suffering, the reasonable inference the Court draws from their actions is that whatever humiliation and outrage they suffered from the disruption of their vigil and their arrests, it was not so much as to dampen their enthusiasm for demonstrating. The Court does not characterize this opportunity for further witness as a benefit to the plaintiffs. But it does perceive their refusal to post collateral as an indication that their mental distress was not unduly severe. It might be characterized as a sort of self-inflicted mini-martyrdom.

 In seeking substantial damages, plaintiffs have emphasized the case of Roberts v. Wilson, Civ. A. No. 1436-71, aff'd without opinion, 489 F.2d 1273 (D.C. Cir. 1974), in which Judge Gesell of this Court awarded compensatory damages of $3,000.00 and punitive damages of $500.00 to each of two plaintiffs who were falsely arrested on May 3, 1971, while they were on their way to work during mass demonstrations in the District of Columbia. They were arrested at 7:30 in the morning and confined in the practice field of D.C. Stadium until 8:30 at night. Then they were transferred to the coliseum and held until four o'clock the next morning.

 The Court finds the case at bar distinguishable from Roberts. Neither of the two facts which the Court has found controlling in this case was present in Roberts. Furthermore, the Quaker plaintiffs were incarcerated for a relatively brief time in comparison with the Roberts plaintiffs.

 The situation which most closely approximates the case at bar is found in Farber v. Rizzo, 363 F. Supp. 386 (E.D. Pa. 1973). On the morning that the President was to speak at Independence Hall in Philadelphia, police refused to permit demonstrators in front of Independence Hall to display anti-war placards. Demonstrators who persisted were arrested and taken to the police station. Later that morning a District judge issued a temporary restraining order against police interference with the first amendment rights of the demonstrators. In violation of the temporary ...


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